R v RM [2023] NSWDC 90

District Court New South Wales

Medium Neutral Citation: R v RM [2023] NSWDC 90 Hearing dates: 14 March – 27 March 2023 Date of orders: 20 March 2023 Decision date: 20 March 2023 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 14 Catchwords: EVIDENCE – expert evidence – semen stains and contested issue as to how one was deposited on a bedframe in complainant's bedroom – whether evidence fell outside witness' expertise – whether evidence substantially based upon expert's specialised knowledge Legislation Cited: Evidence Act 1995 (NSW) ss 79, 135 Cases Cited: R v Basha (1989) 39 A Crim R 337 Texts Cited: Nil Category: Procedural rulings Parties: Office of the Director of Public Prosecutions (ODPP) RM (accused) Representation: Counsel: Mr C Reynolds for the ODPP Ms K Hogan for the accused

Solicitors: ODPP AJA Associates for the accused File Number(s): 2020/00213495 Publication restriction: Non-publication order regarding the identity of the accused and the complainant

JUDGMENT

Background 1. In this trial, the accused is charged with multiple sexual offences against the complainant, his daughter, over a significant period, most recently in 2020. 2. The last of the alleged incidents occurred on 19 July 2020. The complainant gave evidence that one of the two charges arising from that alleged incident involved the father masturbating himself in the complainant's bedroom in close proximity to her head. 3. In this context, the Crown has called Mr Ben Reid, a Crime Scene Officer attached to the New South Wales Police. Mr Reid has given evidence substantially to the effect that the accused's semen was detected in the complainant's bedroom, and specifically on the side frame of the complainant's bed. There are certain photos (Exhibit I) depicting a semen stain. 4. Mr Reid had also given some evidence of the methodology deployed to detecting semen stains in which he set out his understanding the various ways in which semen can be identified. Putting the matter very broadly, this includes, amongst other things, ordinary and forensic light sources, and the use of chemicals which can act upon seminal fluid and illuminate semen. Mr Reid stated that he had been involved in dozens and dozens of crime scenes involving semen. 5. In a number of those photographs, Mr Reid referred to the semen stain identified on the bed frame. After doing so Mr Crown asked him whether he could give a name to the semen stain. That line of questioning provoked objection by Counsel for the accused. 6. In the absence of the jury I permitted a 'Basha' inquiry in which Mr Reid was invited to spell out what he knew on the subject of semen stains. 7. The gist of his evidence in that inquiry was that Mr Reid had, in one of his two reports, referred to the stain as being of a 'drip' stain. But subsequent to that opinion, he had completed a blood stain course and he reconsidered the accuracy of that description. Mr Reid stated that, so far as he is aware, there is no course that officers like himself can attend which focuses specifically on semen stains. He appeared to prefer, as an alternative description, that it was a 'flow' stain. He preferred that because of a pattern visibly evident on the stain explicable he thought by gravity on this form of liquid. Although he accepted that there may be differences between blood and semen stains, especially in their chemical composition, they were both derived from liquid emitted from the human body. 8. Counsel for the accused argued that Mr Reid was not qualified to express opinion about the nature of the semen stain or how it got deposited on the bed frame. His evidence was based upon inferences derived from special study in blood stains which were different in nature to the semen stains. This was evidence that fell outside his expertise and was not substantially based upon his specialised knowledge. 9. Mr Crown tendered on a voir dire a statement of Mr Reid's qualifications contained in his second report which supported evidence already adduced in chief. His speciality may, it seems to me, be sufficiently described as being that of a forensic investigator. Matters touched upon in the second report of some connection also included his completion of the course in Biological Evidence Recovery and, as Mr Reid had touched upon, a Blood Stain Pattern Analysis. Both courses were facilitated by the New South Wales Police Force.